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Naum v. Richard

November 2, 2010

JAMES NAUM, PLAINTIFF,
v.
BARBARA RICHARD OF DHHS, REGION 10; GOVERNOR BUTCH OTTER; IDAHO DHW; LINDSAY RUSSELL; RICHARD M. ARMSTRONG; CHRISTINE ROBERSON; DANA MCGREW; EDWARD P. LOCKWOOD; DOE IS; AND DOE IIS, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

SECOND REVIEW ORDER

INTRODUCTION

Before the Court is an Amended Complaint (Dkt. 16), filed by Plaintiff James Naum. The Court previously granted Mr. Naum in forma pauperis status and conducted a review of his initial complaint (Dkt. 3). In its Order (Dkt. 10), the Court dismissed a number of claims and defendants, but granted Mr. Naum leave to amend. The Court directed Mr. Naum to make monthly payments of $25, starting June 1, 2010, until his $350 filing fee was paid in full. Mr. Naum has not made any payments. Mr. Naum filed his Amended Complaint by the deadline set when Mr. Naum's request for an extension of time was granted. In August 2010, the Court dismissed Mr. Naum's case (Dkt. 17) for non-compliance with orders requiring monthly filing fee payments, and Mr. Naum filed a Notice of Appeal to the Ninth Circuit Court of Appeals (Dkt. 18). The Court then entered a Notice (Dkt. 21) that it would reconsider its order and judgment dismissing Mr. Naum's case. The Ninth Circuit remanded to this Court for reconsideration (Dkt. 22). The Court now reconsiders its Order and Judgment dismissing Mr. Naum's case, and reviews Mr. Naum's Amended Complaint to determine whether it states a claim or claims on which relief can be granted.

BACKGROUND

In its initial review order (Dkt. 10), the Court granted leave for Mr. Naum to amend his complaint, and indicated that an amended complaint must contain all of a plaintiff's allegations in a single pleading, and not reference any prior pleading, under Idaho District Court Local Rule 15.1. Order, Dkt. 10 at 14. Mr. Naum's amended complaint is substantially different from his initial complaint. In keeping with Local Rule 15.1, the Court will assess the claims alleged in the amended complaint only, without consideration of factual allegations that may have been asserted in the initial complaint, but not reasserted here.

Mr. Naum brings this action claiming damages related to denial of DHHS benefits to which he claims he was entitled. Mr. Naum applied for DHHS-DHW "safety net" benefits in January 2009. According to Mr. Naum, his application was denied on March 9, 2009 due to incomplete paperwork concerning his bank information. However, Mr. Naum was notified in a letter dated June 5, 2009 that he was eligible for food stamps and for a Medicare program that "pays for Medicine Part B premiums . . . and deductibles for income qualified beneficiaries." Am. Compl., Dkt. 16 at 3. Despite receiving this notice, Mr. Naum asserts that he never received the described benefits, and on June 11, 2009, DHW Hearing Officer Edward P. Lockwood issued an order denying his appeal and benefits. Id. at 3.

Mr. Naum names Director of IDHW Richard Armstrong as a defendant and alleges that he "inundate[d] [] Congressman Mike Sompson (sic) with false statements" concerning Mr. Naum's application for and entitlement to benefits. Am. Compl., Dkt. 16 at 2-3. Naum also names Governor Butch Otter as a defendant, alleging that Governor Otter "expressed personal interest in this matter," and received a copy of an inquiry letter that Mr. Naum sent to Congressman Simpson. Id. at 3. Mr. Naum asserts that Governor Otter's representative, Lindsay Russell, received copies of documents and letters, sent by Mr. Naum, regarding his benefit application. Finally, Mr. Naum alleges that clerks at the District Court of Idaho "misdirect people who want to access this Court." Id. at 2.

Mr. Naum asserts that all named defendants "participated in a conspiracy that deprived plaintiff" of benefits to which he was entitled. Mr. Naum alleges that defendants acted willfully and maliciously, causing emotional and physical damage, supporting his claims in tort.

DISCUSSION

The Court finds it appropriate to vacate its order and judgment dismissing Mr. Naum's case based on his non-compliance with orders requiring incremental payments of his filing fee. The Court now reviews Mr. Naum's amended complaint, as required under 28 U.S.C. § 1915(e)(2) . For the following reasons, the Court finds that Mr. Naum has stated cognizable claims with respect to some defendants. The Court also dismisses a number of claims and defendants, finding that Mr. Naum has failed to state sufficient allegations on which to proceed. The Court is mindful that pro se pleadings must be liberally construed and the pro se plaintiff given the benefit of any doubt. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). However, the Court must also bear in mind recent U.S. Supreme Court decisions which require that complaints make plausible factual assertions in order to survive dismissal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).

A. Eleventh Amendment Immunity

In the Court's first review order, it dismissed claims against Idaho DHW, finding that Eleventh Amendment immunity applies, and prohibits suit against a state, state agency, or state official working in his or her official capacity. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-46, 113 S.Ct. 684 (1993). On this basis, the Court here affirms its dismissal of Idaho DHW.

The Court will also dismiss claims against Governor Otter, in his official capacity. To the extent that Mr. Naum names Governor Otter in his individual capacity, the Court finds that he has failed to state a sufficient claim. A state official may have individual liability for depriving a plaintiff of a constitutional right if the state official is personally involved in doing an affirmative act, participating in another's affirmative act, or omitting to perform an act which that person is legally required to do. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Mr. Naum has failed to allege facts that support, with any ...


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